Fran Andersen, Jessica Rohe and Dawn Rohe / City of Audubon - Chapters 21 and 22
Iowa Public Information Board
In re the Matter of:
Fran Andersen, Jessica Rohe and Dawn Rohe, complainants
City of Audubon
Case Numbers: 14FC:0014 (Andersen)
14FC:0016 (D. Rohe) and 14FC:0036 (J. Rohe)
PROBABLE CAUSE REPORT
RE: Formal Complaints 14FC:0014, filed by Audubon County Attorney Fran Andersen, 14FC:0016, filed by Dawn Rohe and 14FC:0036, filed by Jessica Rohe. All three complaints concern the City Council of Audubon, Iowa (City). The Iowa Public Information Board (IPIB) accepted the complaints on May 15, 2104, (14FC:0014 and 0016) and on June 19, 2014 (14FC:0036). All three complaints were assigned to staff for informal resolution pursuant to Iowa Code Section 23.9. On November 14, 2104, a Remediation Agreement signed by complainants Fran Andersen, Jessica Rohe and the City of Audubon, along with dismissals of complaints, were filed with the IPIB. Recommend a finding of probable cause and dismissal of all complaints.
Three formal complaints were filed and accepted concerning the City Council of Audubon, Iowa (City). Subsequent to the acceptances, IPIB staff coordinated efforts to informally resolve the complaints pursuant to Iowa Code section 23.9. Staff drafted a proposed mediation plan, based upon the suggestions presented by the complainants. The City adopted this remediation plan on September 8, 2014. On November 10, 2014, the City adopted two additional plans (attached separately). One plan was based upon the IPIB proposal, the other by complainant Fran Andersen.
Dawn Rohe moved from the area and has withdrawn as a complainant. Fran Andersen has approved the remediation by the City and has requested to withdraw her complaint. Jessica Rohe approves of the recommendations of this report.
A significant portion of the proposed plans has been completed:
a. The Council voted to rescind the actions taken on January 13, 2014, concerning the city clerk position.
b. All City Council members, the Mayor, the City Clerk’s Office, the Police Chief and the City Public Works Director watched the Iowa League of Cities Open Meetings/Open Records Webinar. Some City Officials have also viewed the Iowa Public Information Board’s (IPIB) Open Meetings/Open Records training on the IPIB website and through IPIB Power Point website training.
c. Each City Council Member now possesses an Iowa Open Meetings, Open Records Handbook prepared by the Iowa Freedom of Information Council, for quick reference.
d. Thomas Nielsen, Robert Jacobsen, and Joe Foran attended the IPIB training in Atlantic, IA, on November 10, 2104.
e. City officials provided requested emails and texts to the Audubon County Attorney for review. Some deleted emails were retrieved and provided; others were unable to be retrieved, according to Council members.
f. To promote openness, the City included citizens on a sub-committee to review applications and recommend the top candidates for the City Clerk position.
g. The Council enacted the policy that personally-owned computers will no longer be used for City business.
h. City Officials will not “Reply All” on emails sent to all City Council members to avoid unintentional deliberation.
i. The City Council now holds a Public Forum at each City Council Meeting to allow citizen input within time limitations. The previous unwritten policy of the Council to allow citizens to call in and be placed on the agenda to address the Board has been terminated.
The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):
“Board action. Upon receipt and review of the staff investigative report and any recommendations, the board may:
a. Redirect the matter for further investigation;
b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding”.
Probable cause is not specifically defined in Chapters 21, 22 and 23. A different section of the Iowa Code defines probable cause as “reasonable suspicion”; it is defined in legal dictionaries as the “apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a cause of action has accrued, justifying a civil lawsuit.
Based upon investigation of the complaint, I recommend that the IPIB determine probable cause exists to believe that the City did violate certain provisions of Chapters 21 and 22. However, based upon the remedial actions taken by the City, and upon the withdrawal or dismissal of all of the complaints, I recommend that the IPIB, as an exercise of administrative discretion, dismiss the matter as provided by Iowa Administrative Rule 497 - 2.2(4)(c).
Respectfully Submitted this 17th day of November, 2014.
Margaret E. Johnson, JD
Iowa Public Information Board
David Wiederstein, counsel for the City of Audubon